What’s Race Got To Do With It?

I wrote about the George Zimmerman trial here, noting that so far, the trial seemed to have gone badly for the prosecution. I also said:

I confess that I find much of the commentary on the Zimmerman case, and even a good bit of the evidence, mystifying. There is no question that Zimmerman shot Martin; he claims self-defense. That defense raises a straightforward question of fact. All of the nonsense about whether Zimmerman was a “wannabe cop,” and whether he “profiled” Martin, and whether he was or was not a “racist,” is utterly beside the point.

In that post, I recommended the daily, blow-by-blow coverage by Andrew Branca at Legal Insurrection. Branca was kind enough to write to us with an explanation of why the state is playing the race angle. I quoted him at length here:

Actually, those elements are being pursued by the State for a good reason–they are essential to the State’s ability to prove the “depraved mind” necessary for a murder 2 conviction, which is what the State is pursuing (however foolishly) against Zimmerman. …

In order to prove the second degree murder charge the State brought against Zimmerman they must prove beyond a reasonable doubt that he acted with a depraved mind. To get to a depraved mind they need to show some kind of hatred or ill-will. In most murder 2 cases the people know each other and have a long history of animus, which is the source of the “depraved mind”. Here Martin and Zimmerman did not know each other, so the State is forced to pursue some more generalized hatred–such as racism.

Fortunately, there’s no evidence of such, so they’re flailing. I don’t believe they have the slightest hope of proving murder 2.

Andrew agreed with my view that the case comes down to the straightforward factual question of whether Zimmerman acted in self-defense.

This morning at his PJ Media blog, Andy McCarthy weighed in. (Like Andrew Branca and unlike me, Andy, a former federal prosecutor, is an expert on criminal law.) Andy, who described the prosecution as “collapsing,” thought that Branca was giving the state too much credit:

Power Line’s John Hinderaker has had an interesting exchange with Legal Insurrection’s Andrew Branca. Putting aside the lack of evidence that Zimmerman is a racist, John forcefully argues that, in the context of this homicide prosecution, his purported racism is “utterly beside the point.” The crux of the case, instead, is a simple matter of whether Zimmerman’s admitted shooting of Martin was in legitimate self-defense. Mr. Branca counters that the prosecution is using racism (or at least the specter of racism) to substitute for its dearth of evidence on the required mental element – namely, that Zimmerman acted with a “depraved mind.”

Mr. Branca is quite right that this is what the prosecution is trying to pull. He goes off the rails, though, in suggesting that this is a viable theory. With due respect, I think his explanation of the statutory term “depraved mind” is wrong. In part, he is conflating two separate mens rea concepts that arise in murder cases: depravity and premeditation.

In order to prove the second degree murder charge the State brought against Zimmerman they must prove beyond a reasonable doubt that he acted with a depraved mind. To get to a depraved mind they need to show some kind of hatred or ill-will. In most murder 2 cases the people know each other and have a long history of animus, which is the source of the “depraved mind”. Here Martin and Zimmerman did not know each other, so the State is forced to pursue some more generalized hatred – such as racism.

I disagree. Generalized hatred has nothing to do with “depraved mind” murder. In such cases, we are not talking about intent driven by an attitude specifically related to the victim, triggered by long-held animus. We are talking, instead, about something almost diametrically opposite: a perverse lack of regard for human life – not the victim’s human life but all human life.

Explaining this concept (with reference to New York state law) in the 2012 case of Gutierrez v. Smith, the Second Circuit U.S. Court of Appeals instructs:

The archetypal depraved indifference murder…would resemble “shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions’ cage in the zoo.” By contrast, …a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.

Zimmerman’s killing of Martin is a one-on-one shooting. Now, to be sure, the court did not say that one-on-one killings can never qualify as “depraved indifference” murders. But it is exceedingly rare. When it does occur, the focus is not on the subjective intent of the killer but the objective recklessness of the killing….

With due respect to Mr. Branca, when the murderer knows his victim and there is a long history of animus, we are usually talking about premeditated murder. The animus tends to prove that the decision to kill was made before the act that caused death. In Florida, that is first-degree murder, which is not charged in the Zimmerman case. …

It is virtually inconceivable that a situation involving self-defense on the killer’s part will fit a “depraved mind” charge. And I am not limiting myself to situations when the self-defense claim is legally convincing. I am saying that in any one-on-one scenario where self-defense is worth raising, it is nigh inconceivable that a “depraved mind” murder has occurred.

There is more, all of it worth reading. Andrew Branca, however, thought that McCarthy had misconstrued what Branca wrote, which was intended to be highly critical of the prosecution. Branca commented on McCarthy’s NRO post:

[Y]ou specifically claim that my act of “going off the rails” was with respect to my claim that State’s strategy which was under discussion was a “viable strategy.” I have searched both my original text and the version that was posted (they match), and neither contains mention of the word “viable” whatever.

Indeed, the entire point of the blog post was that the State’s strategy was NOT viable. How you managed to miss that is beyond me. Indeed, I argue throughout the piece that there is little or no evidence of Zimmerman possessing a “depraved mind” and considerable evidence against (e.g., it was Zimmerman who phoned the police and asked for officer to the scene).

I have found this all of this exchange highly illuminating. No doubt many of our readers, like me, were puzzled as to why the issue of race was being injected into a prosecution where the only real issue is whether Zimmerman acted in self-defense. I think Branca’s analysis explains what the state’s theory is, and why it has been able to get testimony on the seemingly irrelevant race issue before the jury. McCarthy’s response casts appropriate doubt on whether the state’s use of the “depraved mind” theory is appropriate; doubt which Branca shares.

My takeaway is that there is little or no difference among Branca, McCarthy and me in our views of the Zimmerman prosecution. Local authorities saw that the physical evidence, and the statement given by the one neighbor who actually witnessed a portion of the altercation, supported Zimmerman’s claim of self-defense, and declined to prosecute. It was political pressure by race-hustlers, abetted by President Obama, that brought about the appointment of a special prosecutor with an implied mandate to go after Zimmerman. In a political sense, race–however irrelevant it may be to resolution of any legitimate issue in the case–is the whole point.

There is another, equally disreputable aspect to the prosecution’s playing of the race card. No doubt, the prosecutors hope to prejudice jurors against Zimmerman by dragging in these collateral matters. Their hope is that jurors will be distracted from how weak the case against Zimmerman is, and will decide the case based on their biases, rather than the facts. In his post today, Andy McCarthy concluded:

This case does not belong in a criminal court. That it has gotten this far is a sad triumph of demagoguery over due process.

That is a proposition on which McCarthy, Branca and I agree.

And oh, by the way: if you wondered whether the title of this post was inspired by Scott’s Proud Mary post this morning, it was.